Attorney General Alberto Gonzales has sent a letter to the Senate Judiciary Committee following up on his testimony about the NSA domestic surveillance program. The new letter adds a few details and corrects a few potential misimpressions from the AG's live testimony. Among the more interesting tidbits: The NSA surveillance program was authorized by the President very soon after 9/11. Specifically, it had already been authorized by the time the President signed the Patriot Act into law on October 26, 2001.

Also pretty interesting: The Gonzales letter gives a very strong hint that the initial legal justification for the NSA program within the Executive Branch was mostly a strong Article II claim of inherent power, and that the AUMF argument that the Administration is relying on now did not provide the primary legal basis for the program when it was enacted. See pages 5-6. Given that we now know the NSA program was approved by late October 2001, it seems at least possible (depending on how you read the letter) that the program may have been approved before the AUMF was even passed. That would have required really fast work, as the AUMF was passed about a week after 9/11, but it's at least a possibility.

What changed that explains the current primary reliance on the AUMF argument? One plausible answer is the Supreme Court's June 2004 decision in Hamdi v. Rumsfeld. Most of the Hamdi opinions are hard to reconcile with the Administration's broader Article II claims. In addition, Justice O'Connor's plurality opinion offered a relatively broad interpretation of the AUMF, making the AUMF arguments more plausible (if, in my mind, ultimately unpersuasive). The shift in legal ground may also explain why the scope of the NSA program and the arguments being made in favor of it don't match very well: It seems that the Administration's arguments in recent weeks weren't the major arguments DOJ was relying on when the program was designed and approved.

Perhaps I'm the only one, but the more I read, the more I wonder whether the PATRIOT ACT was a smoke screen. It seems to me that there were a lot of questionable articles written that which were not entirely necessary. For example, the issue over library records-- I know for a fact that prior to 9/11 law enforcement was authorized to obtain library records just as they would any other document. But, writing it down created a firestorm.

After reading the Risen book I am starting to believe that the administration created the PATRIOT ACT knowing it would catch the attention of the public, which would keep the press busy and unable to uncover the secret plan. It seems that this all fits together way too nicely. The PATRIOT ACT obviously, does not grant the military any law enforcement powers. This might be because the military cannot act in this function. Yet the secret program was able to skirt the PATRIOT ACT as the investigations were kept at a military level. Seems to me everything was created in a nice little puzzle in order to ensure the administration could do as it pleased.

This is not to say I disagree with what they are doing, but definitly with the way in which they are doing it.

As one aside, I find the series of non-answers about other programs based on this reasoning--which may or may not be hypothetical--grimly amusing.

As another aside, I'd like to see his definitions of the verbs "to impede," "to encroach," and "to infringe".

Anyway, it certainly is interesting, and somewhat mysterious, that Gonzales asserts that the DOJ's legal analysis has not been "static" over time, but rather has "evolved". But Gonzales also uses the "static" line in an attempt to clarify that when he said that they had not done legal analysis of domestic spying, he only meant that they did not provide legal analysis of domestic spying in the January 19th paper.

Which doesn't make much sense as an interpretation of his prior statements. But he does seem to be setting up some sort of contextual claim for why they may or may not have authorized any other program--he claims the Department needs to "take account of all current circumstances" when making their legal determinations.

Which again is all quite mysterious, particularly given the sweeping nature of their legal reasoning, in that it does not seem highly context-dependent at all. But the cynic in me suggests that is just a codification of the general principle that they will figure out what they want to do first, and then come up with the best legal arguments they can to "authorize" doing whatever they want to do.

Interesting... I always thought the AUMF argument was rather convincing... moreso than the inherent article II powers argument. Looks like maybe they were "illegal wiretaps" at least until Congress "authorized" them with the AUMF.

What changed that explains the current primary reliance on the AUMF argument?

I thought the obvious inference would be: the lawyer making the argument changed. That is, John Yoo (or whoever else was making the argument in 2001/2002) was perfectly comfortable making the strong Article II claim, but his successors weren't.

Yeah, that Article II argument is a winning argument so long as the only people who get to interpret it work in the Article II branch. The dang problem is that no one in the Article I or Article III branches finds it persuasive.

One of the goals of the military is to confuse the enemy and keep him off balance. At times you want to appear weaker than you are, sometimes stronger than reality. We bluffed Russia with the Star Wars program and won. Could this NSA thing be similar? Tell the world that we are listening to comunications that the enemy thought were protected. If they adapt and abandon working forms of comunication the end result is identical without actually having the program. It sounds too WW2 british so I doubt thats its the real story. It is fun to think about though.

What changed that explains the current primary reliance on the AUMF argument?

Attorney General Gonzales testified before the Senate in his confirmation hearings, and perjured himself in responding to Senator Feingold but for the AUMF fig lead. He has to continue to profess that the AUMF somehow amended FISA. No one really believes it -- that's not the point. Given Feingold's questions, which (off the top of my head) were about 'violations of the criminal laws' rather than 'illegality,' the Article II argument did not give Gonzales a way to avoid disclosing the domestic wiretapping.

As far as the rough timeline goes, recall also that according to Gonzales' testimony, in an exchange with Leahy, that 2004 was the time frame when the administration abortively explored a congressional authorization.

Meanwhile, the current action seems to be among Senate Republicans. Today's NYT story indicates no consensus there.

Specter's proposal, at least a draft from a few days ago, turns out to be a hybrid that combines future judicial review with a rather permissive statutory framework that would seem to enable surveillance more aggressive than the administration has confirmed so far. That has generated no small amount of controversy.

A welcome post, Orin. Frankly, maybe I'm an optimist, but when the current Roots Project gets up and off the ground, I think the public at large is going to wake up to the fact that this Administration and politicians on both sides, in both houses, have enabled a President to chuck the Rule of Law, trash the Constitution, negate the system of checks and balances, violate the public's Constitutional civil liberties and start down a very, very dangerous and possibly fatal path.

It seems to be more of a rehash, including the constitutional avoidance claim and reasserting Morrison's ruling about a statute not infringing on the executive branch's constitutional authority. What I find still unclear is a delineation of what communications is surveilled without a warrant. If this one end of the conversation being foreign leads to a domestic source being surveilled, are they using the FISA process for that domestic target once identified ? I haven't seen that question answered.

I came across this opinion piece by Victoria Toensing in the Weekly Standard, as someone who has experience in constitutional law, having worked with FISA during the Reagan administration in the DOJ and as chief counsel for the Senate Intelligence Committee, as well as the writing of laws, she co-wrote the Intelligence Identities Act that was in play in the Plame case, it would seem she would have a modicum of expertise to bring to the table, I thought you might critique her analysis.

Victoria Toensing turns eavesdropping on telephone calls involving U.S. residents into "battlefield intelligence." Defending the administration on this seems to require this sort of suspension of disbelief.

Toensing writes: "So there is the rub. Under established case law, parts of FISA are unconstitutional in so far as they prohibit or limit the president's constitutional authority to collect foreign intelligence information."

Too bad the DOJ lawyers have never believed enough in that argument enough to take it to court. And too bad you don't either, since you don't favor judicial review of the implications of this "established case law" -- almost all of which preceded FISA. Having forfeited that high ground, you now have little credibility regurgitating these legalistic "arguments," which already have been chewed over here for 2 1/2 months.

What changed that explains the current primary reliance on the AUMF argument?

I think the answer to that is simple: Jack Goldsmith. Shortly after Goldsmith took over at OLC, he took the extraordinary step of withdrawing the 2003 Yoo torture memo, a memo which reportedly relied on the same "robust" Article II argument that served as the original justification for the NSA program. When Goldsmith withdrew support for Yoo's torture memo, he likely withdrew support for his nearly identical surveillance memo. That's probably what caused James Comey to refuse to reauthorize the program when it came up for review in early 2004. I think the AUMF argument was a product of the compromise between Comey/Goldsmith and the White House that allowed the program to continue. As a part of that compromise, Goldsmith wrote a new memo that relied on the supposed statutory authority provided by the AUMF, rather than Yoo's article II theories. The AUMF argument is clearly Goldsmith's baby, as is evident by the article he wrote for the Harvard Law Review in May 2005, after he left the administration.

That article adds exactly 0 to the conversation. The way you presented it, I assumed that Toensing had presented some insight based on her "intelligence experience." Instead she recapitulates the same flawed, familiar bromides:

Hamdi said the AUMF authorizes this stuff (we all know what Hamdi says - I know you do; I'll paste in the passage if you like - it is expressly limited to detention of battlefield combatants)

Truong says that the president has interent authority to do this stuff (footnote 4 of truong PLAINLY says FISA changes the equation)

The FISA court ruling, which I think everybody agrees is the only shred of precedent there is to stand on

The idea that this is "domestic surveillance" is misleading (ok, who cares? it's not like "international communications" is particularly descriptive either, and neither bears on the constitutionality of the program.)

Certainly she has more expertise than most commenting. She has worked in both the legislative and executive branches, she has written law. I have heard no one present a cogent rebuttal to

No one can seriously argue that obtaining foreign intelligence information about the enemy is not a "fundamental incident of waging war."

It is not a stretch to infer that the Hamdi ruling on detention would thus extend to obtaining foreign intelligence, contrary to your 'expressly' assertion. That would mean dentention was the ONLY fundamental incident of waging war.

Another point you seemed to miss, which ties directly to her experience in both branches and writing law:

A little statutory history is required to understand this legal argument. When Congress passed FISA it contained two contradictory statements: (1) FISA and the criminal wiretap statute were the "exclusive means" by which there could be interception of wire and oral communications, and (2) a person is guilty of a crime if he intentionally "under color of law" (which is how the president does it) obtains foreign intelligence information, unless he is "authorized by statute." Like it or not, that's how laws get passed. Each side gets something. Those against any wiretapping got the gift of limiting the conduct to those two laws; proponents got the gift of an exception to that limitation: some other law.

Your position means one must assume that the legislative branch gets everything it wants and the executive branch gets nothing. That is simply not how government works under the Constitution.

She even discusses Truong and references the footnotes

the Fourth Circuit discussed FISA, stating it requires, "prior judicial approval for some foreign intelligence surveillance." The act, though, "does not . . . transport" the warrant requirement "unaltered into the foreign intelligence field." Thus, after passage of FISA, this court took great pains to stress that a FISA warrant is not the only legal method for the president to obtain foreign intelligence.

Whether you seek to ignore her experience is certainly a free choice, but she certainly has as much expertise as anyone opining on this issue, if not more.

I believe the arguments Toensing makes have been addressed both here and elsewhere time and time again. I realize that you are convinced by the arguments, and seem to think it's worth noting that you have found someone else who shares your views (and especially someone with a resume that you find impressive). But I think most of us have concluded that the arguments are not persuasive, or at least are quite simplistic. Given that, I don't see the point in repeated rehashing of arguments as if the arguments were new.

Actually I saw this argument, and I caught my eye because of how little sense it made:

A little statutory history is required to understand this legal argument. When Congress passed FISA it contained two contradictory statements: (1) FISA and the criminal wiretap statute were the "exclusive means" by which there could be interception of wire and oral communications, and (2) a person is guilty of a crime if he intentionally "under color of law" (which is how the president does it) obtains foreign intelligence information, unless he is "authorized by statute." Like it or not, that's how laws get passed. Each side gets something. Those against any wiretapping got the gift of limiting the conduct to those two laws; proponents got the gift of an exception to that limitation: some other law.

(1) after declaring that what is needed is statutory history, she proceeds to deliver analysis that has nothing to do with statutory history

(2) i don't get what's contradictory about those two provisions at all. the first one says that this is the only way the government can wiretap. the second says that there's no qualified immunity defense. maybe i'm just dumb.

Toensing, though an attorney, feigns ignorance of legal terms of art such as "under color of law." An act is committed under color of law when performed under purported legal authority, even when such legal authority is actually absent.

I know. If I wasn't being clear, I was being facetious. I was being gracious in pointing out the only "original" point was "original" only because it was so egregiously incorrect.

Although I have to admit, it does actually re-frame an argument against the administration in terms I hadn't used before. The legislature doesn't abrogate qualified immunity unless they REALLY, REALLY mean that the government is not allowed to violate the statute. It further undercuts the "implied repeal" argument implicit in the AUMF.

Suppose the weaknesses of the presumed Yoo theory were already apparent in 2001 or 2002 (and at least some of these should have been apparent to counsel). Then AUMF would have looked somewhat attractive as the Trojan horse to shore up the surveillance policy without having to acknowledge it was already underway. The otherwise very dangerous gamble on WMD's in Iraq -- the lack of clear connection to 9/11, the double risk of either sending our boys into a cloud of poison gas or finding no WMD's -- begins to make clearer sense. This may have reflected a rather naive faith on the part of the administration that the various surveillance programs would be sufficiently useful to national security that they would offset any possible repercussions of UMF in Iraq. Or it could tend to suggest that the scope of these programs really was so extensive and/or the techniques so invasive that their strategic benefit would be beyond question to anyone in the administration.

Agreed, but legal intricacies are hardly the only ones the administration's supporters are offensively guilty of skating over. Case in point: in making public statements, administration officials/supporters refuse to openly acknowledge that the 72 hour window for retroactive authorization is just that - retroactive. Instead they (correctly) bank on the public's (ir)rational ignorance and just incant that "3 days is too long, we need to act in a matter of minutes."

I find that most more credible "conservative" legal academics are focusing either on the underlying 4th amendment legality or the potential punitive consequences of the leak, and not the separation of powers issue.

I made this point on another post, but I'm experiencing a lot of cognitive dissonance while posting on this issue and watching a relentless stream of cialis commercials.

As always, I'm confused by those who insist that Hamdi, which purposely and specifically put the administration's Article II claims to the side, somehow offers important guidance on the strength of the NSA-program Article II claims.

It seems clear enough that the Hamdi plurality opinion profoundly shifted the administration's view of AUMF. The many legal arguments against the position that AUMF authorizes the NSA program would, in almost every single case, apply equally to the non-detention statute at issue in Hamdi, yet the plurality opinion doesn't even bother to mention them. The arguments against the administration's position on the NSA program, then, really come down to assertions that the plurality opinion in Hamdi just got it wrong. Which is fair enough--in many ways it isn't a satisfactory opinion. But opponents of the administration's opinion should be more direct--if they think the opinion is wrong, they should say so (and not just limit themselves to out of context quotations supposedly addressing Article II matters).

Orin, what do you mean when you refer to the mismatch between the program's scope and its legal justification?

Now my chance to post something that's actually germane to Orin's point (I have blog A.D.D.):

I think part of the shift to the AUMF is a consequence not only of Supreme Court precedent, not only of a shift in administration personel, but also because of the political realities of a mid-term election.

Refuting the AUMF argument - as opposed to refuting the article II "argument" - requires that some congresspeople come out saying "we didn't mean that" and therefore looking weak on terrorism. A retroactive interpretation shouldn't matter THAT much to the "congressional purpose" the Supreme Court would look at in the process of reconciling FISA and the AUMF, except that this phenomenon DOES most certainly affect Congress's willingness to create various channels for judicial review.

Orin's point about the "scope" of Hamdi is not a disguised claim that Hamdi is incorrect; it is the claim that Hamdi's AUMF rationale is, by its express terms, very very VERY limited to the facts before the court. Look at the language:

The AUMF authorizes the President to use “all neces-sary and appropriate force” against “nations, organiza-tions, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network respon-sible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.

The "mismatch" between scope and justification exists because the justification involves Hamdi - which quite expressly limits its rationale to detention of enemy battlefield combatants - but the scope of the surveillance/monitoring/eavesdropping/empathetic listening captures people well beyond those contemplated in the Hamdi opinion.

If the "program that is being discussed" began or was at least authorized before the AUMF, then wouldn't reliance upon the AUMF as its legal authority require interpreting it as an ex post facto law at least as to any covered surveillance that took place before passage?

I think they might now be forced to defend themselves on the inherent and exclusive Article II argument, unless they can come up with some completely novel theory we still haven't seen and assuming they aren't going to admit laws were broken.

I think you're certainly right on a formalistic (I mean this non-pejoratively) level - you can't possible rely on Congressional authorization you have not yet received.

I'm thinking out loud here, so bear with me. I'm not really sure how much the administration cares if the AUMF rationale couldn't apply to the pre-AUMF surveillance. I'm considering the potential costs to the administration if the pre-AUMF activity is considered unconstitutional:

(2) criminal liability (I just don't can't figure out how a court could impose criminal liability if the administration could prove that it was not acting in bad faith and was acting pursuant to a credible theory of constitutional power)

I guess the upshot is that if the administration doesn't face that much downside in some adverse finding as to the pre-AUMF constitutionality of the program, why not let it ride with a theory that can't account for that period, but is much stronger for the residual period.

Per (2), FISA is a statute with criminal penalties for violation, so there is real liability if a special counsel ever gets assigned to investigate. So I think issue #1 for the administration has to be blocking any and all calls in the Congress for another special special counsel or an expansion of Fitzgerald's mandate.

It is a slight diversion, but no more so than some of the speculation of whether the NSA program was implemented before the AUMF. The AUMF was signed less than a week after 9/11, the NSA program was authorized in October. It would have been irresponsible if the government had not started thinking about strategies to protect the country in the immediate aftermath of 9/11. Everyone keeps ignoring that the Intelligence Committees were briefed as required by law from its inception and NO objections were raised (except Rockefeller wrote himself a letter). That alone gives congressional consent, they had plenty of time to raise objections and the avenues to do so. The simple fact is that they didn't until the NY Times violated the law and some saw an opportunity to play politics.

Now it is fodder for legalese legerdemain, how can we manipulate or interpret to make it a crime, when the real crime is the NY Times article, cut and dried, but not one word is spoken or analyzed. Not a word about The Espionage Act of 1917, Chicago Tribune being brought before a grand jury in 1942, The Pentagon Papers case, United States of America v. Samuel Loring Morison, the AIPAC case, the relevance and contradictions of the Plame case, the Edgar and Schmidt study, USCC §798. Disclosure of Classified Information.

Which is really the more egregious issue ? If one says they stand for the rule of law, how can one turn their back on this and make such a claim with a straight face ? Then they snicker with a gleam in their eye and say 'Politics.' The rule of law only matters if it serves their point of view.

KMAJ, that's a great point. Orin Kerr has only written about the NSA program because of an irrational desire to tear down the commander in chief.

Also, your novel theory on how a bill becomes a law-- that the executive acts lawfully when it breaks criminal laws, then tells a small number of Congressmen and prevents them from discussing the matter with their staffs or with other Congressmen-- is a fine example of post-9/11 Constitutional thinking.

Why do we even bother with Article I or Article III anymore, anyway? Don't people know there's a war on?

As you point out, the real outrage is that our ignorance of what our government is doing-- the source of our strength as a nation-- has been replaced by dangerous knowledge. The blaspheming media must be jailed.

Incidentally, I note that the Washington Post has a story about a lawsuit filed by the al-Haramain Islamic Foundation. It apparently alleges that the NSA illegally intercepted communications between the director of the foundation, who was in Saudi Arabia, and two U.S. citizens working for the foundation in Washington, D.C., as lawyers.

People have often asked here how a private plaintiff could acquire the necessary information to make such allegations. In this case, apparently, the government accidently disclosed the necessary documents to the foundation (and then later demanded them back).

This has already been gone over, Medis. You're wrong. FISA Section 109 states that any statute could satisfy the exception to the warrant requirement - not just an amendment to FISA; if Congress had wanted to say that an amendment to FISA was necessary, it certainly knew how to write that (see, e.g., Sections 2511(1) and (2)(e), which specifically provide that an amendment to FISA is required).

More importantly, if there is any ambiguity in the matter, the canon of constitutional avoidance requires a court to find in favor of the legality of the NSA program.

Maybe we aren't on the same page as Hamdi. But as I read it, the plurality authorized the detention under the AUMF, and only the (I believe) Stevens partial concurrance / partial dissent, really disagreed with that. The plurality then went on and rejected on other grounds.

But the important point, as I see it, is there were more justices voting in favor of the AUMF giving the required power than voting against, with the rest (who are possibly thee Administration's strongest proponents) not really mentioning it. In other words, if the decision had been only about the AUMF, and were today, the Administration seems to have reason to belive that it would have 6 or 7 votes in its favor.

That is why I think that the Administration added the AUMF to its justification for the "Terrorist Surveillance Program" (TSP) (now we have a name for it).

Obviously, there is disagreement as to what Hamdi means, and a lot here don't want to get reinvolved in discussing it. But I would still be interested in why they think that Hamdi would suggest that the Supreme Court would NOT approve of the TSP based on the AUMF. (My personal view, right now, is that all we have is that one data point, and it is ever so slightly in the Administration's favor - I can be convinced to the contrary).

I agree this has all been gone over before, and I see no real reason to do it again. But if you insist, note that I cited 18 USC 2511(2)(f), not 50 USC 1809. 1809, of course, doesn't "state[] that any statute could satisfy the exception to the warrant requirement," but rather merely creates criminal liability under FISA if a person "engages in electronic surveillance under color of law except as authorized by statute." So, the Administration's reliance on 1809 is misplaced, because it is actually 2511(2)(f), not 1809, which deals with the scope of FISA. Finally, of course their reliance on the "canon of constitutional avoidance" requires the premise that FISA would in fact be unconstitutional if applied to this case, and that is a premise which many have disputed.

But as you noted, we have indeed hashed all this out many times. I'd be happy to see all these arguments put to the test in court, and I think that might well happen. But in the meantime, I think it is fine for people to note that there is a great deal of skepticism about the Administration's statutory arguments.

Maybe I have the advantage/disadvantage of having watched a lot of the testimony on C-Span. But, in reference to all my previous posts, what appears to be happening is that the Administration is viewing 50 USC 1801(f)(1) and (f)(2) as effectively being merged. Alternatively, it could be viewed that the requirement under (f)(1) that the actual surveillance be conducted outside the U.S. has been removed. And, that is about all that is happening here. All the rest of the (f)(1) requirements seem to be being observed. The language that the AG repeatedly used just tracks 1801(f)(1) too well for it to be a coincidence, and he repeated himself several times in his oral testimony and in the letter. My one proviso is that in the oral testimony, he pretty much stuck to the targeted individual being outside this country, and in the letter, he seemed to maybe backtrack a little from that.

But remember my repeated point some weeks ago - technology has made interception under 1801(f)(1) infeasible. They just can't feasibly intercept the bulk of international calls into or out of the U.S. other than in the U.S. today.

Finally, one thing that he did discuss in his oral testimony, and has on previous occasions, but didn't in this clarifying letter, was the 72 hour Emergency Orders provision. I have repeatedly heard here that that provision is a viable way for the NSA to get around the laborious order application process mandated by FISA. But, again, he energetically refuted that. The AG's position seems to be that there is a lot more legally required for an Emergency Order than can be done over a brief phone call to him, and that all that is legally required for such an Emergency Order makes them almost useless in the context of the TSP.

I also don't think that Hamdi really decides the statutory issue one way or another. I think people's point, however, is that the Court in Hamdi soundly rejected the Administration's separation of powers arguments, but did cobble together a majority of votes in favor of statutory authorization for Hamdi's detention under the AUMF. So, the latter sort of argument (statutory rather than separation of powers) would be relatively appealing for the Administration after Hamdi, regardless of whether that reasoning in fact applies to this case.

As an aside, I'd note that the vote on the AUMF/statutory authorization issue was actually 5-4, with Thomas joining with the plurality. Scalia's dissent (which Stevens joined) rejected the argument that the AUMF suspended the writ of habeas corpus. Souter's opinion (which Ginsburg joined) rejected the argument that the AUMF satisfied 18 USC 4001(a). Of course, if you remove the Suspension Clause issue, we don't quite know what Scalia and Stevens would have thought, but they didn't seem favorably disposed to read the 2001 AUMF broadly.

Interestingly, all four of those dissenters on this issue are still on the Court. The two new Justices both replace Justices in the former majority on this issue. So, if anything, the turnover on the Court may have reversed even that slim majority.

"My one proviso is that in the oral testimony, he pretty much stuck to the targeted individual being outside this country . . . ."

I don't recall Gonzales, or anyone else in the Administration, saying that. Rather, they have repeatedly said: (1) that one party is outside the United States; and (2) that they have probable cause that one party is affiliated with Al Qaeda. But I don't recall them saying that the party outside the United States (Party 1) is always the same party who is suspected of being affiliated with Al Qaeda (Party 2).

So, if you can point me to some record of them saying so, I'd be much obliged.

KMAJ. What I find still unclear is a delineation of what communications is surveilled without a warrant.

You're missing the whole point, KMAJ. You are thinking only about the Terrorist Surveillance program which limits itself to one party being overseas, or there being "probable cause" that one party is a terrorist.

Now it is coming out that, as we suspected one hour into Gonazles' testimony, and as Orin pointed out the day of the testimony, Gonazles chose his words so carefully (yet awkwardly enough to raise a red flag to anyone who was really listening) because there are other programs. What programs? None of us knows, because no newspaper has leaked any details about them, and nobody in government has revealed what they are.

The only thing we know is that they fall outside of the Terrorist Surveillance Program of which Gonazles spoke, as well they should, since They. Do. Not. Involve. Terrorists.

This means they are domestic to domestic, or domestic to overseas where there is no reason to believe, when the spying starts, that either party is a terrorist or has any terrorist connection, or both.

That of course would be why they can't get FISA approval for that surveillance, and the 72 hour retroactive feature of FISA is of no benefit. They'd have to explain why they were tapping in the first place.

Paul Craig Roberts suggests that what it's all about is they are spying for partisan purposes. That has broad implications, going beyond merely spying on political opponents. It involves so much more, and you can use your imagination to flesh that out.

For instance, if a certain mega company is a big donor of the party, it would certainly help out if the ones spying could get, through surveillance, information about that company's competitors to pass on to the donor company, wouldn't it? Etc. etc. etc.

And of course, you hardly need confine yourself to the arenas of business espionage or poltical adversaries.

The big arena, although it doesn't involve money, is to be able to stifle all dissent by spying on your intellectual enemies. To the extent that some in this country have not been completely brainwashed, and are courageous enough to speak out in protest, those people are ones you can be sure are being spyed on.

Go read Glenn Greenwald to see where he goes beyond the points Orin first made.

And finally, Orin, I do hope you will be writing some lead post about what the implications are if members of Opus Dei are now sitting on the Supreme Court, as headlines yesterday speculated is the case.

I suppose if you belong to Opus Dei (I don't know if you are religious or what religion you are) you won't be inclined to write about that.

To me, however, knowing something about Opus Dei, it is a topic at least as interesting as any other I can think of.

PS. The other big point, of course, other than that we're all being illegally and unconstitutionally spied on, is that the President lied to the American people. Repeatedly, over time, and unambiguously. He outright lied. He ran for re-election using that lie.

I hope they put "If you're talking to a terrorist, we want to know about it" on his tombstone. It's one of the most deceptive statements ever made by an American President.

I don't have the transcript of the AG's testimony, but I seemed to remember hearing it there. But, obviously, that is not what he said in his letter, but, as you suggested, the implication that TSP would cover interception regardless of whether the foreign party was the targeted party.

Rereading 50 USC 1801, I think that a better way of describing what the Administration is apparently claiming it is doing (with the possible proviso of my last post reponding to Medis) is eliminating 1801(f)(2).

Thus, they would have:
(f) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

With (f)(2) eliminated, most of their problems disappear. It is the bolded portion of (f)(2) which would make it applicable now, as it wasn't really in the past.

Actually, as I think about it a bit more, and read my last couple of posts, maybe I am being a bit simplistic. Medis' point, most likely, is that targeting a U.S. Person in the U.S. might still be within the TSP parameters, as long as the other party is foreign (and it is, thus, an international call), and that would bring it under 50 USC 1801(f)(1), not (f)(2), which I have been railing against.

And this is really where I think that there is some ambiguity about what is going on. What we do seem to know is that the TSP requires that one party be outside the U.S. and one party be believed to be associated with al Qaeda or another similar terrorist group. As I noted, the AG's testimony seemed to indicate that the foreign party had to be the target, but the letter seemed to indicate that either party could be. The President's statement about al Qaeda calling home would seem to indicate that the foreign party was the target (because, presumably, his calling al Qaeda in Afganistan or Pakistan is what would give him away as being an al Qaeda member or sympatizer).

My suspicion is that this ambiguity is intentional, to keep al Qaeda, et al., a little bit in the dark. My futher guess is that they are getting warrants for any real U.S. targets, and, hence, all that FISC activity over the last three years. But, I can also see why those suspicious of the Administration would believe to the contrary.

To further the debate, I will include an excerpt from Glenn's post of today. I made a donation to VC recently, but will make another today to cover the expenses of the bandwidth.

[OK: I have deleted Minnie's very long excerpt. Minnie, we've been over this before: You are welcome to provide links to Greenwald's blog if relevant to a thread, but extremely long quotes are not permissible. If you would like to make comments here, please stick with the rules that most people seem quite able to follow.]

Sorry to keep revising what I said in previous posts. But probably a more accurate statement would be that the TSP, as disclosed to this point, requires that at least one party to a conversation be outside the U.S. I suggested that it meant that one was inside the U.S. I don't believe that to be accurate. There is some indication that the NSA has managed to have a lot of purely foreign calls routed through monitored U.S. switches. But since neither party is in the U.S., FISA doesn't apply.

In your suggestion that the AG only talked about international calls because intercepting purely domestic calls would be obviously illegal, etc. is, I think, reading a lot more into his statement than is warranted. I do remember him, at some point, expressly denying that purely domestic calls are being intercepted, but without recourse to all the testimony I have heard of his over the last couple of months, I can't absolutely verify that. I will try to get the transcript of his latest Senate testimony and look through it.

'The terrorist surveillance program targets communications where one party to the communication is outside the U.S. and the government has “reasonable grounds to believe” that at least one party to the communication is a member or agent of al Qaeda, or an affiliated terrorist organization.'

I should note that while this tends to negate Minnie's point about domestic surveilance, it tends to corroborate Medis' point that it is not necessarily the foreign party who is being targeted.

FYI here is a link to the Gonzales transcript. (The first of four parts).

BTW, I believe Minnie's point is that while Gonzales said the particular program about which he was testifying did not include surveillance of domestic-to-domestic calls, he would not deny that there were any other programs, now or in the past, that might include such surveillance.

I agree that we do not really know exactly what is going on in this program. But it seems to me that it is unlikely that the possible problem that you have identified--which I agree is a problem worth fixing, incidentally--is the only motivation for, and defines the full scope of, this program.

For one thing, as you point out, it would indeed be easy to fix this problem legislatively, and I can't imagine Congress would balk. For another, their entire line of argument about the inadequacy of the 72 hour emergency provision would be largely irrelevant if this was the only problem. Finally, in every statement that I have seen, they seem to have carefully avoided saying that the suspected affiliate of Al Qaeda is identical to the foreign party.

Of course, I understand the standard reply to these observations, which is that maybe all this is merely a smokescreen. But if it is a smokescreen, it is a massive, elaborate, and seemingly counterproductive smokescreen. Moreover, such a smokescreen seems entirely unnecessary to me, since they certainly feel no need to elaborate on details in any event.

In short, I am skeptical about the idea that they have not ruled out U.S. persons sometimes being the targets of the surveillance in order to deflect public attention, because their failure to do so seems to actually attract more attention. Rather, it seems far more plausible to me that they aren't ruling that out simply because they can't, which is because at least sometimes the U.S. person is the target of the surveillance.

I do note that, from what we know of Sen. Specter's draft bill to authorize surveillance under judicial review, domestic-to-domestic surveillance seems to be allowed. In fact, his proposal does not even require either party on any particular intercept to be a terrorist agent, only probable cause that the entire program will capture some such agents in its surveillance net.

I do agree that the AG seems to carefully distinguish things so that theoretically the TSP could target U.S. persons in the U.S. He doesn't seem to distinguish, as does FISA, between U.S. Persons and non-U.S. Persons in the U.S. I, for one, would be happier if he limited targeting to the later (a non-U.S. Person in the U.S. is someone here illegally, who would also be protected from surveilance under 1801(f)(2), but not (f)(1)).

On the other hand, he does say a couple things about purely domestic surveilance:

The need to protect national security also means that I must confine my discussion of the legal analysis to those activities confirmed publicly by the President; I cannot and will not address operational aspects of the program or other purported activities described in press reports. These press accounts are in almost every case, in one way or another, misinformed, confused, or wrong...

No one takes lightly the concerns that have been raised about the interception of domestic communications inside the United States. But this terrorist surveillance program involves intercepting the international communications of persons reasonably believed to be members or agents of al Qaeda or affiliated terrorist organizations.

Yes, he doesn't explicitly reject surveiling purely domestic communications under another, possibly similar, program. And, I can see some who are paranoid about this Administration assumming from that that he is in fact covering for another, purely domestic, surveilance program.

But I read it as pretty much denying that they are engaged in warrantless domestic surveilance. I guess it depends on how much you trust this Administration, and, most likely, whether or not you trusted them enough to vote them back for another term.

You're understanding of the avoidance doctrine is incorrect. Not only, as Medis points out, would the statute have to be lose an as-applied challenge, but you seem to have the cart 15 miles in front of the horse. If the court identifies an ambiguity and one particular interpretation is constitutional, the Court may select that interpretation. You make it sound as though avoidance doctrine requires the Court to declare the least-unconstitutional interpretation to be constitutional.

I said:
Actually, if the way you are required to satisfy the exception is by passing legislation, it is the same thing.

You said:
No, it really isn't. There is a presumption against repeals by implication. There isn't a presumption against satisfying an exception.

You are being disingenuous. You know that my point is that to the extent the "exception" states the phrase "except when authorized by statute" (I am assuming you are talking about the 1809 issue), it merely restates the interpretive canon disfavoring implied repeal with which we are all familiar. That exception makes it clear that when a statute authorizes a tap, it discharges criminal liability; it doesn't affect how we interpret whether or not a statute has authorized it in the first place. It certainly does not create eliminate the presumption that other FISA provisions should be interpreted pursuant to ordinary methods of statutory interpretation.

If, on the other hand, you are arguing an "exception" under 18 USC 2511(2)(f) (you are unmercifully vague here), you are stuck in largely the same place. That provision carves out an exception for otherwise applicable federal law, but doesn't tell you a lick about how to determine what "otherwise applicable" means.

The presumption against implied repeal is an interpretive rule, not a substantive one.

The letter on page 1 states that "the President first authorized the Program in October 2001, before he signed the USA PATRIOT Act." So I'm not sure how the letter could be read to be consistent with the post's speculation that the "program may have been approved before the AUMF was even passed."

On Bruce's first two links cited above, IMO the government has issues with FISA's differentiation as to where the electronic surveillance takes place determining whether it is subject to FISA (a reason why I contend FISA is dead for technological reasons).

And Bruce is correct in his third post linked here that Attorney General Gonzales' testimony implied that the government has warrantless surveillance going on directed at domestic to domestic communications. His tesimony was limited to programs where one end of a communication was foreign, but he implied there were other programs. IMO those other programs are purely domestic in nature.

I don't take the AG's statement that the TSP doesn't surveil domestic communications to mean that another program does. Rather, just that, that this program doesn't. There may be another program that does, but he definately doesn't say it, or, really, even imply it.

What must be remembered though is that the TSP, and, presumably any other NSA, etc., programs, are classified, and part of their value is keeping al Qaeda, et al., in the dark as much as possible as to how they work. So, no surprise, that the AG is as cryptic as he is. Yes, he is hiding stuff. Of course he is. We know he is hiding stuff to protect classified projects from al Qaeda. The question is whether he is hiding other projects that would be even more controversial. And this is where I think trust comes in. You either trust the Administration (and probably voted for it), or you don't (and probably didn't).

None of us can say with any credibility that there are classified programs that surveil purely domestic conversations without warrants, because we just don't know. I don't really think so, but understand why a lot of you do.

Bruce Hayden: The question is whether he is hiding other projects that would be even more controversial. And this is where I think trust comes in. You either trust the Administration (and probably voted for it), or you don't (and probably didn't).

So if we voted for Bush it is supposed to be okay with us for him to break the law in secret?

That's what this is all about -- offending the rule of law, not just being "more controversial."

I do not think that is what Bruce was saying. He was saying those that voted for Bush 'may' trust he is not breaking the law, not that they say it is ok to break the law. That is a faulty premise to insert as a factual statement, 'for him to break the law', something that is not factually substantiated, but is subject to debate. That is called trying to frame the parameters of the debate in your favor.

Well, the program that Bush has confirmed does, on its face, break the law, and the administration and its surrogates such as you and Bruce refuse to trust judicial review to vindicate Bush purported legalistic defense. I can only assume that other, "even more controversial" programs would also be unlawful.

If you and the Predident want to "debate" the program's legality, the place to do it is in court. Because you and Bush refuse to do so, the rest of us have no real obligation to take seriously the "legal" arguments you might make.

Bush has already forfeited the "debate" over the legal merits, and is negotiating for the congressional authorization he used to claim was not needed.

Bruce, you said: "None of us can say with any credibility that there are classified programs that surveil purely domestic conversations without warrants, because we just don't know."

It depends on your definition of "credibility". FISA has exceptions permitting some warrantless domestic surveillance, so the Bush administration would be derelict in its duty if it wasn't at least using those.

It's more a question of how much warrantless domestic surveillance is being performed, and whether that is subject to oversight outside the Executive branch.

The easy way to post a link at this blog is to click the Link button above the window where you enter your text. Then paste the URL for the link into the prompt box that pops up. Finally, in the text window, type the words you want for the visible link between the angle brackets.

I still don't understand what you think we should be trusting the Administration about. I guess you are saying that we should just trust that whatever they are doing, it is the right thing to do. And in response, all I can really do is suggest that you heed the words of Ronald Reagan: trust, but verify.

JaO,

I also find it interesting that the DOJ refused to confirm Harman's statement. In related news, Harman and Hoekstra apparently worked out a deal to get additional briefings for some members of the House on operational details, but the Republicans voted as a block against requiring the Administration to produce legal opinions.

Thank you very much for the instructions, Just An Observer. I'll experiment on an old thread, so as not to embarass myself in "real time" if I get it wrong :)
"The terrorist surveillance program targets communications where one party to the communication is outside the U.S. and the government has “reasonable grounds to believe” that at least one party to the communication is a member or agent of al Qaeda, or an affiliated terrorist organization."

As for the above, I haven't been following this issue closely, but I've been following it enough to make the following three observations:

l) Certain instances of the term "Terrorist Surveillance Program" suggest that the "parsed words" usage of that phrase in some of Gonazles' statements suggest that there are other programs, by different names, which have not yet been discussed.

2) Harman's recount of Gonzales' conversation with her leaves open the possibility, to some, that he was indeed talking of current programs only, and not any former programs which may have been discontinued because of the current controversy.

3) And finally, to my mind, Orin Kerr's comment in a thread above (March 3, 11:11) about the possible distinction between "electronic" surveillance and other forms of surveillance that fall outside of that precise, technical term seems to be a very insightful observation that I haven't seen anyone else make yet. My hunch is that Orin's observation will turn out to be quite prescient.